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Week 9 Defences - Self-defence, Duress and Compulsion, Necessity and…

The offences are relied upon in circumstances where a defendant argues they were compelled to act, threatened, instilled with fear and forced to carry out an act of a criminal nature.The defence options are not available for all criminal law offences, and this week we discuss the legal elements which comprise each defence and the circumstances in which they will apply.

Self DefenceIn Queensland, if an accused person commits an act in their defence, they may raise self-defence pursuant to the Criminal Code (Qld)1) s 271(1), (2) where it is an unprovoked assault; or2) s 272 where it is a provoked assault.3) If an accused person is defending/in aid of a third person – their involvement must be in good faith they may rely upon s 273.

2.1 Self-defence against an Unprovoked Assault s 271

2.1.1 S 271(1) Force used by the Defendant was not Intended or Likely to Cause Death or Grievous Bodily Harm

applies in circumstances where there is an initial assault by the victim. The initial assault must be unlawful and the initial assault is not provoked by the defendant. applies where the force used by the defendant is not intended and not likely to cause death or grievous bodily harm to the victim.

A subjective element does not apply as the state of mind of the defendant is irrelevant: R v Gray (1998) 98 A Crim R 589 at 593; and R v Hagarty [2001] QCA 558 at [34] per Williams J.

The degree of force/the response is to be reasonably necessary in the circumstances. This is an objective standard: R v Young (2004) 142 A Crim R 571; [2004] QCA 84 at [6]. Therefore, the defendant can not use unreasonable force; they can not go above and beyond what is reasonably necessary. Determining a necessary response is answered by what should be reasonable: Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 662.

If the defendant is mistaken as to whether the act of the defence was reasonably necessary the defendant could apply s 24 -mistake – an honest and reasonable belief.

2.1.2 S 271(2) Force used by the Defendant was Intended or Likely to Cause Death or Grievous Bodily Harm

A subjective and an objective element are present: R v Gray (1998) 98 A Crim R 589 at 593 per McPherson JA.

subjective element ascertains the reasonable belief of the defendant—it is necessary to show that there was no other way for the defendant to defend themselves against the initial assault. The defendant believed what they were doing was the only way they could save themselves from the assault: R v Muratovic [1967] Qd R 15 at 19 per Gibbs J.

objective element is whether there was a reasonable apprehension of death or grievous bodily harm likely to be inflicted upon them by the victim and further whether the force used was necessary in the circumstances.The defendant needs to actually apprehend the attack and that the attack would have caused a reasonable person to apprehend at least grievous bodily harm based on an honest and reasonable belief.

2.2 Self-defence against Provoked Assault s 272applies in circumstances where the defendant uses self-defence against an attack by the victim, where the victim attacks the defendant because the victim was provoked by the defendant.

subjective element requires a reasonable belief that it was necessary for the preservation from death or grievous bodily harm to use the force.

objective element is whether there was a reasonable apprehension of death or grievous bodily harm and hence the force used was necessary in those circumstances.

section 272 contains three elements

3) The use of force by the defendant was reasonably necessary.

2) The defendant believes on reasonable grounds that to prevent the initial attack causing death or grievous bodily harm against the defendant, it was necessary to use the force;

1) The initial attack against the defendant caused the defendant a reasonable apprehension of death or grievous bodily harm;

272(2) prevents a defendant from relying upon the defence contained in section 272(1) in the following three circumstances:

1) The defendant’s use of force which causes death or grievous bodily harm and this first begun the assault with intent to kill or to do grievous bodily harm;

2) The defendant’s use of force which causes death or grievous bodily harm endeavoured to kill or to do grievous bodily harm before the necessity of so preserving the defendant arose;

3) Unless before such necessity arose, the defendant using such force declined further conflict, and quitted it or retreated from it as far as was practicable.

Duress and Compulsioncommon law terminology of duress is compulsion: s 31 Criminal Code (Qld). Compulsion arises where the commission of an offence is the only way to avoid a more serious circumstance arising.

3.1 The Threat of Serious Harm s 31(1)(d)(i);

The conditions for the application of s 31 are that defendant does the act, or omits to do something, in order to save themself or some other person or property, from a serious harm or detriment that the person making the threat is in a position to execute: see section 31(1)(d)(i)

3.2 The Subjective Element s 31(1)(d)(ii);

The defendant must reasonably believe that the doing of the act is the only way for them to avoid the threat being carried out.

‘The reasonableness of the belief is considered in light of other alternatives’; those other alternatives ‘cannot afford protection from the threat’: R v Taiapa (2009) 240 CLR 95 at 102 per Keane JA.

The defendant’s act or omission must be reasonably proportionate to the harm or detriment threatened: R v Smith [2005] 2 Qd R 69.

3.4 When Compulsion does not Apply and the Evidential Burden

The excuse does not apply to the offence of murder, or an offence of grievous bodily harm, or of intending to do grievous bodily harm.Section 31 is further excluded where the defendant entered into an unlawful association or conspiracy which rendered the defendant liable to such threats: s 31(2).

The evidential burden is on the defendant to prove they acted under compulsion, and when the defendant satisfies this burden the prosecution must prove beyond reasonable doubt that the defendant did not act under compulsion: Taiapa v R (2009) 240 CLR 95 at 98.

Necessity - Sudden or extraordinary emergency

4.2 Subjective Element – Not Required

There is no subjective element. If the defendant is honestly and reasonably mistaken as to existence of the emergency the defendant is able to rely upon s 25: R v Webb [1986] 2 Qd R 446 at 449.

4.3 Objective Element

The objective element ascertains whether an ordinary person possessing ordinary self-control would be expected to act differently.In the decision of Raiskio v Hanlen [2011] QDC 350 the applicant/appellant relied upon s 25 defence arguing she acted in an emergent situation, when she moved a patient in a nursing home facility because the patient was repeatedly slamming a door which was approximately 60% glass. The District Court of Queensland held the conduct of Raiskio was necessary in a situation of emergency because the glass door could break and cause injury to the patient or others.

4.1 Circumstances of the Sudden or Extraordinary Emergency

Circumstances arise where there is a sudden or extraordinary emergency requiring the defendant to act.There must be a causal connection between the emergent situation and the response of the defendant. Such an emergent situation is one ‘that comes upon the defendant unexpectedly, catching the defendant off guard, a situation of extreme gravity and abnormal or unusual danger’: Johnson v State of Western Australia (2009) 40 WAR 116; [2009] WASCA 71 at [60].

s 268 ProvocationProvocation involves an act or series of acts done by the deceased to the accused which would cause an ordinary person in the position of the accused, and actually does cause in the accused, a sudden and temporary loss of self-control: Masciantonio v R (1995) 183 CLR58.

5.1 Provocation and Assault

Provocation is available as a defence where a defendant is charged with an offence containing an element of assault (where assault is defined in s 245): ss 269-270 Criminal Code (Qld). Section 269(1) states:A person is not criminally responsible for an assault committed upon a person who gives the person provocation for the assault, if the person is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for the person’s passion to cool, and if the force used is not disproportionate to the provocation and is not intended, and is not such as is likely, to cause death or grievous bodily harm.

The elements of provocation for an assault-based offence include:

1) A wrongful act or insult;

2) A subjective element where the defendant was deprived of the power of self-control and was induced to assault the person by whom the act of insult was done or offered;

3) An objective element where an ordinary person provoked couldor might have lost their self-control and committed an assault against the victim.

If assault is not an element of the offence, the defendant is not in a position to rely upon the defence of provocation. A defendant cannot rely upon defence of provocation if the defendant is charged with grievous bodily harm, s 320, or wounding, s 323: Kaporonovski v R (1973) 133 CLR 209.

5.2 Provocation and MurderProvocation is a partial defence for the offence of murder: s 304 – because if raised successfully provocation does not result in an acquittal. However, it will reduce the charge from murder to manslaughter.

The elements of provocation for a charge of murder include:

1) A sudden provocation by the victim which caused the defendant to kill the victim;

2) Subjective element where the defendant as a result of the conduct of a provocative nature loses their self-control, the loss of self-control is not premeditated and was sudden;

3) Objective element where an ordinary person provoked with the same gravity could ormight have lost their self-control and formed an intention to kill or inflict grievous bodily harm.